Elena Kagan no longer thinks Supreme Court nominees should have to answer direct questions

Jon Ward Contributor
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The White House Monday said that Supreme Court nominee won’t follow her own advice from 1995 in answering questions on specific legal cases or issues, supporting Kagan’s flip flop on the issue that she first made a year ago.

Kagan wrote in 1995 that the confirmation process had become a “charade” because nominees were not answering direct questions, and said they should have to do so.

But during a briefing with reporters in the White House, Ron Klain, a top legal adviser to Vice President Joe Biden who played a key role in helping President Obama choose Kagan, said that she no longer holds this opinion.

Klain pointed to Kagan’s testimony during confirmation hearings for her current job as solicitor general, the government’s top lawyer.

“She was asked about it and said that both the passage of time and her perspective as a nominee had given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully,” Klain said, prompting laughter from a few reporters.

“You will see before the committee that she walks that line in a very appropriate way. She will be forthcoming with the committee. It will be a robust and engaging conversation about the law, but she will obviously also respect the conventions about how far a nominee should or shouldn’t go in answering about specific legal questions,” Klain said.

During her confirmation hearing on Feb. 10, 2009, Kagan was questioned about her 1995 law review article by Sen. Orrin Hatch, Utah Republican, who restated to Kagan the position she took about the need for answers to specific questions, and expressed concern that this would violate the judicial obligation to impartiality.

“I’m not sure that, sitting here today, I would agree with that statement,” Kagan said, referring to her own opinion from 14 years prior.

“I wrote that when I was in the position of sitting where the staff is now sitting, and feeling a little bit frustrated that I really wasn’t understanding completely what the judicial nominee in front of me meant and what she thought,” Kagan said, referring to her time on Biden’s staff in 1993 when he was chairman of the Senate Judiciary Committee.

Kagan helped Biden with the confirmation hearing of Justice Ruth Bader Ginbsburg. In her law review article, Kagan said Ginbsurg used a “pincer movement” to evade being pinned down about her views on specific topics.

When asked a specific question on a constitutional issue, Ginsburg replied … that an answer might forecast a vote and thus contravene the norm of judicial impartiality. Said Ginsburg: ‘I think when you ask me about specific cases, I have to say that I am not going to give an advisory opinion on any specific scenario, because … that scenario might come before me.’ But when asked a more general question, Ginsburg replied that a judge could deal in specifics only; abstractions, even hypotheticals, took the good judge beyond her calling. Again said Ginsburg: “I prefer not to … talk in grand terms about principles that have to be applied in concrete cases. I like to reason from the specific case.”

But Kagan told Hatch a year ago that “this has to be a balance.”

“The Senate has to get the information that it needs but, as well, the nominee, for any particular position — whether it’s judicial or otherwise, has to be protective of certain kinds of interests, and you named the countervailing ones,” she told Hatch.

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